Social Networking Threatens Another Jury Verdict

A recent article by Andrew Wolfson in the Louisville Courier-Journal recounts yet another in a rapidly growing number of cases involving allegations of jury misconduct. Jury misconduct has historically been a relatively rare occurrence, although certainly not without precedent. Wolfson reports:

A federal jury’s verdict exonerating a Louisville Metro Police officer in a Taser-related death has come under attack after the foreman was accused of researching the weapon on the manufacturer’s Web site and using the information to sway other jurors.

The case is one of a rising number nationally in which jurors have used iPhones, BlackBerrys and home computers to gather and send information about cases, undermining judges and jury trials.

The case involves the death of a man who died after police officers shocked him with a Taser. The lawyer for the man’s estate wants U.S. District Judge John B. Heyburn II to set aside the verdict because the lawyer said a juror called him to say that “at least two jurors, including the foreman, whom she described as ‘the principal advocate for police,’ consulted Taser International’s Web site and used information from the site to try to persuade other jurors.” The juror who made the call testified, during a hearing on the alleged jury misconduct, “that both jurors mentioned that the company’s Web site claims that Tasers are ‘non-lethal’ and cannot cause fatal injuries.” The juror is also reported as having said:

“It really, really bothered me that they were using that … instead of what was really said in the courtroom.”

Heyburn said at the hearing that he saw no need to punish the jury foreman, but he added: “It’s a teaching lesson for all of us that we need to be more careful about our indoctrination of jurors.”

These cases of social media related misconduct are literally running from one corner of the country to another, and are not related to jurors alone. An Oregon case reported in the Portland Business Journal related that:

Multnomah County Circuit Court Judge Youlee Yim You was shocked during her inaugural trial to discover that a domestic violence defendant was texting the victim — his girlfriend — while she was on another floor of the building waiting to testify.

A number of technology and social networking related cases have popped up in Florida recently. An article in the Florida Bar Journal by Ralph Artigliere, Jim Barton and Bill Hahn, gives a snapshot of just how big this has become.

The problem of outside influence on jurors is no longer confined to high profile cases that are covered in the press or other media. Courtroom misconduct seems to be everywhere. Recently, a witness in Miami was discovered texting his boss about his testimony during a sidebar conference resulting in a mistrial; a South Dakota juror in a seat belt product liability case Googled the defendant and informed five other jurors that the defendant had not been sued previously; a juror in a federal corruption trial in Pennsylvania posted his progress during deliberations on the Internet resulting in a motion for mistrial; a juror in Bartow, Florida, looked up a defendant’s “rap sheet” online and told fellow jurors, resulting in a mistrial; and jurors in a Florida criminal case made anti-Semitic comments to each other and consulted one of the jurors’ accountants during deliberations by telephone. Nine of the jurors on a deliberating panel in a federal case in Miami admitted to the judge that they had been doing research on the case over the Internet, resulting in a mistrial. The judge learned that the jurors were Googling the lawyers and the parties, finding news articles about the case, researching definitions and information on Wikipedia, and looking for evidence that had been excluded in the case. All this was accomplished despite the judge’s repeated instruction not to do so. These examples represent recent transgressions that were discovered, and probably represent just the tip of the iceberg of juror behavior.

A Circuit Court judge in Miami-Dade County, Florida, this week dismissed a civil fraud case brought by Sky Development against Vistaview Development. The suit claimed that Vistaview misrepresented the number of units in a condo tower Sky purchased from Vistaview last year.

The dismissal comes after a mistrial mid-May, when Judge Scott Silverman deemed text messaging between two Sky Development officials in court, one of whom was on the witness stand, as “completely…absolutely outrageous.”

A building materials company and its owner have appealed a $12.6 million verdict against them, alleging that a juror posted messages on Twitter during the trial that show he’s biased against them.

Another described what “Juror Jonathan” did today: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

Even judges and lawyers have fallen into the social media dog house, when involved in court proceedings. A California lawyer was suspended from the practice of law because of his blogging while serving as juror. Martha Neil reported in the ABA Journal that an appeals court reversed and remanded the felony burglary case on which the lawyer was sitting as a juror, and:

Although reportedly warned by the judge not to discuss the case, orally or in writing, Wilson apparently made a lawyerly distinction concerning blogs: “Nowhere do I recall the jury instructions mandating I can’t post comments in my blog about the trial,” he writes, before forging on with unflattering descriptions of both the judge and the defendant. He also failed to identify himself as a lawyer to the trial participants, the bar journal notes.

At least one court is trying to curb the social media problem by adding an additional set of admonitions to jurors. An “updated” set of jury instructions Supreme Court of Florida now includes the following language:

Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse.

In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

NOTE ON USE

This instruction should be given in addition to and at the conclusion of the instructions normally given to the prospective jurors. The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

Despite the efforts of judges to reduce the problem, the incidents of jury misconduct related to social networking seem to be growing by leaps and bounds. Thaddeus Hoffmeister acts as editor of the Juries blog, which is increasingly dedicated to recounting stories of such jury misconduct. Likewise, the Deliberations blog had added a new category, Jurors and the Internet, stating it was necessary for “pulling together all the posts here on the subject:”

Over the last two years we’ve accumulated posts on jurors who blog (lots of those, actually), jurors who read blogs, jurors on Facebook and other social networking sites, jurors on Twitter, jurors researching the case on the Internet, jurors who comment on news stories, how to ask jurors about social networking, how to find jurors’ on-line writing, why it matters, and how to deal with problems when they arise. The way things are going lately, there will probably be many more.

If we strike everybody with an I-hate-jury-duty status update somewhere on the Internet, we’re going to run out of jurors really fast.

The legislative and judicial systems have historically been far behind advances in technology. E-discovery was, and perhaps still is, the case in point. Without a paradigm shift, we must wonder where all this is going, and what impact it will have on a system of which some have said, “the wheels of justice grind slow, but they grind exceeding fine.”

The wheels may grind slowly, but the news is sure travelling faster and further all the time.

That’s what I think. Please leave a comment and let us know what you think.

If you are really interested, I just started yet another free group on LinkedIn, Social Media Search and Forensics. Many of these articles and discussion about them are posted there. Please join us.

I am writing a paper on social media’s use in capital cases. These are some great resources! Do you have any leads about how lawyers have used social media profiles in cases? please let me know! twitter: @johnpaulbassnow

Thank you for your comment. I’m glad this was helpful. This is one of the more popular posts on this blog. I may have to start focusing a portion of it on the topic.

I do follow the impact of social networking on the judicial system, including impact on juries. I use a number of sources I’ll be very happy to share. I’ve not been updating this blog recently, but some of the sources are listed in the blogroll. I’ve also listed a number of articles on my LinkedIn group’s discussion area (http://www.linkedin.com/groups?home=&gid=2462270&trk=anet_ug_hm). LinkedIn rolls articles off after a time, but I’ll be happy to “invite” you to the group so you can use the resources there.

I post/curate social media and entrepreneurship articles on Twitter: https://twitter.com/#!/StuartAdamsLaw. I’ve got a number of criminal law attorneys following me, so you could check through those on Twitter.

[…] Over the last few weeks, I’ve been working on presentations for the Louisville Bar Association and a series of CLE seminars for the Kentucky Bar Association on ethics and social media forensics issues for attorneys. I didn’t mean to leave the judges or jurors out, but with the opposing ethics opinions in Kentucky (saying it is OK for judges to have attorney “friends” on Facebook) and Florida saying just the opposite, I’m going to leave the judiciary alone for a while. I’ll get back to them shortly, and have started an article about some of the good and bad things judges are doing with, and to social media. With regard to juror misconduct involving social media in some way, articles now pop up every day, and I periodically add citations, in the comments, to my earlier post, Social Networking Threatens Another Jury Verdict. […]